Ward v Allies and Morrison Architects [2012] EWCA Civ 1287

Case No B3/2011/1087

[2012] EWCA Civ 1287

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM COVENTRY COUNTY COURT

HIS HONOUR JUDGE CLEARY

9CV02731

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 10/10/2012

Before

LORD JUSTICE AIKENS

LORD JUSTICE KITCHIN

SIR RICHARD BUXTON

Between

WardAppellant

Allies and Morrison ArchitectsRespondent

(Transcript of the Handed Down Judgment of

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Theodore Huckle QC and Stuart Cutting (solicitor advocate)(instructed by Wright Hassall) for Appellant

Rohan Pershad QC and Robert Lazarus (instructed by DWF) for Respondent

Hearing Hearing dates : 14th of June 2012

Judgment

Lord Justice Aikens :

The Issues on appeal

[1]This appeal from the judgment and order of HHJ Cleary dated 6 April 2011 concerns aspects of the award of damages made by the judge to Miss Katie Alexandra Ward after a trial on damages only. On 30 August 2006 Miss Ward, (“the appellant”), who had graduated with First Class Honours in the BA (Hons) Model making for design and media course at The Arts University College Bournemouth, was working as a model maker on a short term placement at the offices of Allies and Morrison, Architects, (“the respondents”), in London. She was asked to cut some wood using a circular saw, which was unguarded. Whilst using the saw unsupervised she suffered an accident; the index finger of her left (non-dominant) hand was cut off and her middle finger was significantly damaged by dislocation. Luckily her index finger was able to be re-attached and the appellant has made a considerable recovery, although the extent of it was in issue at the trial.

[2]The principal dispute on appeal concerns the basis on which the judge awarded damages for loss of future earnings. Should it have been on the “broad brush” Blamire approach, Blamire v South Cumbria Health Authority [1993] PIQR Q1 as the judge held, or should it have been on the conventional multiplicand/multiplier approach, using the Ogden tables 6th edition, (“Ogden 6”), as the appellant contends? If it should be the latter approach, then the next issue is whether the appellant must be treated as suffering from a disability for the purposes of using Ogden 6 for calculating the award for loss of future earnings? There are further issues on:(i) whether the judge erred in determining the nature and extent of the appellant’s psychiatric injury following the accident and the appropriate award for pain and suffering and loss of amenity in respect of that injury; and

(ii) whether the judge used the correct basis for the loss of past earnings. One ground of appeal concerning the award of damages for loss of congenial employment was abandoned at the outset of the appeal. The Judge’s findings of fact and conclusions

[3]The trial took five days and the judge gave an extempore judgment after a short break following the conclusion of counsel’s submissions. The approved version of the judgment runs to 15 pages of single spaced typing. The judge heard oral evidence from the appellant, her former tutor at university, Mr Tindall, and the senior associate at the respondent firm, Mr Yates. He found the witnesses of fact honest, although he described the appellant as “not the most reliable of historians”. [11] The judge also had in evidence a witness statement from the appellant’s mother and a report from a counsellor who provided the appellant with 11 sessions of Cognitive Behavioural Therapy. That therapy took place in the early part of 2010.

[4]There were two expert psychiatrist witnesses; Dr Pradham on behalf of the appellant and Dr Neal on behalf of the respondents. The judge was not impressed by either of them and said that their cross-examination revealed “deficiencies in respect of their modus operandi [and] reporting”. Ibid However, he said that this criticism did not prevent him from preferring the evidence of Dr Neal, although without any “great enthusiasm”. [33]

[5]On the basis of all that evidence the judge made the following findings of fact: when the appellant left university she had not made any applications for any employment, but she hoped to develop a career as a model maker in the theatre or in the performing arts and that remained her ambition. [12] The appellant was offered two weeks “work experience” with the respondent firm of architects at an hourly rate of £8 or £10. [4] She “jumped at” the proposal. The accident took place on the second day of her placement. The conclusions of the consultant, Mr Peter Wade, on the physical outcome of the injury were not in issue before the judge and his report was not challenged. Mr Wade said that the wrist of the left hand was normal and the overall appearance of the hand was “good” although it was obvious the appellant had an injured left index finger, which was also stiff. That finger was 2 cm shorter than the right index finger. Mr Wade’s report continued: “There is no hyper-sensitivity and she is able to touch the tip of the fingers with the thumb but pinch grip between the thumb and index is very poor. Function effectively is between thumb and middle finger and, as she says, the index finger is largely cosmetic. The rest of the hand is entirely normal with normal grip strength and she uses it in the normal way to demonstrate things. She tends to rely on the middle finger to position the hand when she is doing things in low light intensity. Examining the left middle finger this seems to have recovered very well from the dislocation but she does have some slight loss of movement…” [7] of the judgment.

[6]The judge concluded that the appellant had not lost anything of her artistic flair “or indeed her overall skill”. Although her evidence was that she had some difficulty with some actions (eg. opening a car door with her left hand), the judge’s assessment was that “the index finger [of the left hand] is an inconvenience rather than a disability” and its cosmetic impact was “negligible”. But the judge also accepted that the appellant suffered significant discomfort from extremes of temperature and that the touch sensation of the left index finger was almost completely absent save for the radial side. [13] The appellant experienced discomfort in the left middle finger when carrying shopping bags for more than a minute or two. [14]

[7]The judge quoted from the unchallenged report of Mr Wade on the likely prognosis for appellant’s ability to use the left hand. He reported that it was difficult to say exactly what she might have done with her finger that she could not be able to do now. Mr Wade described the appellant as “determined” and someone whom he thought would not let the injury get in her way in any shape or form; but he accepted that her career options had been “narrowed”. That was because she had lost her tripod grip in her left hand and so could not do such complicated or fine work as she could before the accident. [15] The judge noted that Mr Wade did not describe the appellant as being “disabled”. [16] The judge also accepted the evidence of Mr Tindall that two hands were not needed for fine work in modelling. [17]

[8]On the question of the psychiatric damage that the appellant had suffered as a result of the accident, the judge first reviewed the history of the examinations of the appellant undertaken by Dr Pradham and Dr Neal. He recounted their evidence at some length. The main point of debate between the experts was whether the appellant had suffered post-traumatic stress disorder (“PTSD”), and, if so, for how long. The judge referred to a joint report prepared by the experts some six months before the trial in order to identify the issues on which they were agreed and disagreed. The judge also reviewed some evidence of the appellant (given for the first time in oral evidence at the trial) about an occasion, which she had said was in March 2010 when she had found it impossible to approach closer than 18 feet of a garden shed in which her father kept a circular saw. The judge’s conclusion, having reviewed all this evidence, was that the appellant suffered PTSD for a period of four months following the accident. He said that it was on that basis that he proposed to make an award in relation to psychiatric injury. [33]

[9]The judge concluded that he was “not satisfied that [the appellant] will be quite unable to carry out her ambition to be a model maker in the performing arts or visual arts which has, she says, been her driving ambition”. [34] Her skills remained, but her major problem about finding the work that she wished to do was the fact that she had been out of circulation for a period of four years in an industry in which it is difficult to get started unless doors were opened, contacts “engaged” and in which tenacity and bloody-mindedness were required in order to succeed. [34] The judge concluded that theatrical model making was at present beyond the appellant, not because of a lack of skill but because of a lack of motivation and because she was “already far behind the pack”. He therefore assessed her entitlement for “loss of congenial employment” at £5000. [35] There is now no appeal from that figure.

[10]The judge accepted the appellant’s evidence that she wished to retain or take further training in the artistic field. He found that the appellant could advance in another rewarding career (other than theatrical model making, her preferred career), which would “produce at least as much as she could earn as a freelance model maker in the competitive world which has been exposed to us in this hearing”. [37] The judge also concluded that if the appellant retrained, in the art of laser cutting, she would be likely to be more successful in seeking a position in architectural model making than in the theatrical model maker’s art, “given her creative bent and the restricted opportunities in the latter profession”. [38]

[11]The judge found that he was unable to predict what the appellant’s potential was, even if she was unable to work as a model maker, but he believed it “quite likely” that she would earn “considerably more and…on a steady income stream basis, in other fields for which, in my opinion, she will be well qualified”. [40] The judge commented that the appellant was at present undertaking unpaid work in a theatre and he commented that “…were she to be disabled she would not have been able to contemplate undertaking that form of work at the moment…” in that theatre. [40]

[12]The judge then made his awards under the various heads of damage sought. On the question of future earnings, he concluded that he did not have sufficient evidence as to what the appellant had lost or what she was likely to earn in the future or the time during which she needed to be compensated for loss of future earnings. He held that he was not satisfied as a matter of law or fact that she was a “disabled person”. [42] The judge therefore felt “driven” to award loss of future earnings on the Blamire principle. On that basis he awarded the appellant “sufficient funds…to enable her to retrain if she so chooses and to take time to do so and to be compensated during that exercise”. So he awarded the appellant £30,000. [43]

[13]For pain and suffering, the judge agreed with the submission of counsel for the appellant that the injury was “on the cusp between brackets E and F of hand injuries” on page 40 of the current edition of the JSB guidelines. He awarded the appellant £20,000. There is no appeal from this award. The judge awarded a separate sum in respect of psychiatric injury of £4,000, on the basis of “flashback and [PTSD]” for a period of four months after the accident. [44]

[14]On past loss of earnings, the judge held that the appellant might well have obtained employment in the field of theatrical model making at a rate of £17,000 per year. But he also held that she would not have been employed for the first year and so would have been employed for only 3 ½ years of the period since the accident to the trial. From that sum any actual earnings during that period had to be deducted. [45] The net figure awarded under this head was £19,750.74.

The arguments and issues on appeal

[15]Mr Theodore Huckle QC, for the appellant, put Grounds 3 (the appellant suffered from a disability) and Ground 5 (wrong to use the Blamire approach to loss of future earnings) at the heart of his argument. On Ground 3 Mr Huckle submitted that the judge erred in fact and in law in finding that the appellant was not “disabled” within the meaning of the Disability Discrimination Act 1995. If he had done so it would have a profound affect on the sum to be awarded if the appellant was successful on Ground 5. On Ground 5 Mr Huckle submitted that the judge erred in declining to apply the conventional methodology of the multiplicand/multiplier and handicap in the labour market, as provided for in Ogden 6, in order to arrive at an award for loss of future earnings. If the judge had done so and on the basis that, for these purposes, the appellant must be regarded as disabled, the figure for loss of future earnings would have been considerably greater than the figure of £30,000 that the judge awarded using the Blamire principle. The appellant’s case was that the correct figure should have been £176,633.46. In oral argument Mr Huckle expressly accepted that if he could not establish disability, then Ogden 6 would not be relevant.

[16]Thirdly, Mr Huckle submitted that the judge erred in the basis on which he awarded £4,000 for psychiatric injury: (Ground 2). He submitted that the judge should have found, on the factual and expert evidence, that there would be a continuing anxiety relating to cutting machines and a general anxiety of “flashbacks” to the accident, which should have been reflected in a much higher award for psychiatric damage; in the region of £20,000 - £25,000.

[17]Lastly, on the assessment of pre-trial loss of earnings, (Ground 4), Mr Huckle submitted that the judge erred in making the assessment he did of the level of earnings lost (ie. at £17,000 a year) and the time during which the appellant would have worked had there been no accident, viz. 3 ½ years. The judge should not have held that the appellant would not have worked for one year out of the total of 4 ½ years between the accident and the trial. The figure under this head should have been £49,740.55.

[18]Mr Rohan Pershad QC, for the respondents, submitted, first, on Grounds 3 and 5, the judge was entitled, on the evidence, to conclude that matters were so uncertain as to the future that he could not assess loss of future earnings on the conventional multiplicand/multiplier basis. If that is so, then there was no question of using Ogden 6 and the issue of whether the appellant was, in fact or law, to be held to be “disabled” for the purposes of using the correct table in Ogden 6 became irrelevant. Secondly, on Ground 2, Mr Pershad submitted that the judge was entitled to conclude as he did on the extent of the psychiatric injury suffered by the appellant and, having made the findings of fact that he had, the judge was entitled to make the award of £4,000. It therefore could not be criticised. Thirdly, on Ground 4, Mr Pershad submitted that the judge’s findings of fact cannot be impugned and that, on the basis of those conclusions, the award of £19,750.74 was appropriate.

[19]I will deal with the issues raised in the following

[20]It is common ground that the multiplicand/multiplier methodology and the Tables and guidance in the current edition of Ogden should normally be applied when making an award of damages for future loss of earnings, unless the judge really has no alternative. See, eg. remarks of Ward and Keene LJJ in Bullock v Atlas Ward Structures Ltd

[2008] EWCA Civ 194

at [17] and [21] respectively. Richards LJ agreed with both judgments. However, in order to carry out the conventional exercise a judge has to deal with two aspects before a multiplicand figure can be calculated. First, he has to make findings on the likely pattern of the claimant’s future earnings if she (or he) had not been injured; secondly, the judge has to make findings on the likely pattern of the claimant’s future earnings given the fact that he/she has now been injured as a result of the defendant’s negligence. As Steyn LJ pointed out in the Blamire case itself, At Q5 in respect of both those issues the burden is on the claimant.

[21]This means that in this case it was for the appellant to satisfy the trial judge, on a balance of probabilities, first, what career path it is likely that she would have taken and so what she would have earned over the period for which a claim for future loss of earnings could be made, which period would, itself, be a matter of proof on a balance of probabilities. This exercise would involve establishing both the type of work the appellant would have undertaken had there been no accident and also the level of remuneration that she would have obtained from it. Secondly, the appellant would have to satisfy the trial judge on what work she was going to be able to undertake following the accident, whether that would be less remunerative than the work that she would have undertaken had there been no accident and, if so, by how much.

[22]The judge’s findings of fact, in particular those at [38] and [40], are clear. First, he was not satisfied, on a balance of probabilities, that the appellant had demonstrated that she would have been able to establish herself or would have been able to retain a position over a long period as a theatrical model maker. Secondly, he was not satisfied that the appellant had proved what she would do now, following the accident. More importantly, it is clear from [40] that the judge was not satisfied that the appellant had proved that she would actually suffer a loss of earnings as a result of the accident.

[23]Mr Huckle had to attack those findings of fact and conclusions if he was to make any progress on Ground 5. He pointed to the appellant’s first class degree, the high regard of her tutor, Mr Tindall, her placement with the respondents and Mr Yates’ offer, during his evidence, to take the appellant on placement again and also to his evidence that the market for model makers was “buoyant”. Mr Huckle drew our attention to the evidence of earnings levels in particular forms of employment and the appellant’s evidence that she was not attracted to teaching but was motivated to carry on as a model maker.

[24]Mr Huckle submitted that the Blamire approach was principally used where the claimant was in business and there was “wholesale uncertainty” as to the future earnings of the claimant; or where the claimant had failed to establish his former or subsequent earning capacity. He argued that neither situation applied here.

[25]I cannot accept Mr Huckle’s submissions. In my view the judge was entitled to reach the conclusion that there were too many imponderables to enable him to hold, on a balance of probabilities, what the likely career pattern and earning capacity of the appellant would have been but for the accident and what it was likely to be as a result of the accident or that she would be likely to suffer a loss of earnings in the future. The evidence before the judge entitled him to conclude that it was uncertain(a) whether the appellant would have succeeded in becoming a theatrical model maker;

(b) whether she would have remained in that position throughout her working career, There was evidence that these jobs were freelance for the most part. Mr Tindall had said he had been unable to carry on as a theatrical model maker through lack of a regular income.

(d) as to whether the physical and psychiatric recovery of the appellant was such that she could do either the job of a theatrical model maker or other jobs as a model maker after the accident. The judge also held that it was likely that she would earn at least as much as a theatrical model maker in the future. [40]

[26]In these circumstances it seems to me that the judge was “driven” to adopting the Blamire approach. As I read the judgment at [42] – [43], the judge was not even actually convinced that the appellant had proved that she would suffer any loss of earnings in the future at all, but he was prepared nonetheless to award a sum to enable her “to retrain if she so chooses and to take the time to do so and to be compensated for that exercise”. The respondents do not object to that approach, so I say no more about it. Issue Two: For the purposes of applying the conventional multiplicand/multiplier and Ogden 6, is the appellant to be regarded as suffering from a disability?

[27]Mr Huckle appeared to argue that it was necessary to decide whether the appellant should be regarded as disabled before concluding whether the Ogden 6 tables were to be used or not. Mr Pershad submitted that the issue of whether the appellant was to be regarded as disabled was not the determining factor on whether or not the Ogden 6 tables were to be used to calculate loss of future earnings. I agree with Mr Pershad’s submission. The correctness of that approach is made clear, to my mind, by paragraph 14 of the Introduction to the 6th Edition of the Ogden Tables, by Mr Robin de Wilde QC. The 6th edition of the Tables was the first one to take account of research on the effect of disability on a person’s future employment status. That research (together with other research concerning the effect of contingencies other than mortality on employment prospects) resulted in the Section B tables set out in Ogden 6. At paragraph 14 of the Introduction, Mr de Wilde writes:

“There will be situations where it will be appropriate to use the factors as set out in the Section B tables to calculate a claimant’s residual earning capacity on a multiplier/multiplicand basis. However, in many cases it will be appropriate to increase or reduce the discount in the tables to take account of the nature of a particular claimant’s disabilities. There will also be some cases where the Smith v Manchester Corporation (1974) KIR 1. Uncertainty of future employment and weaker position in the competitive labour market as a result of disability caused by the defendant’s negligence to be taken into account when awarding damages for loss of future earnings. or Blamire approach remains applicable. There may still be cases where a precise mathematical approach is inapplicable”

. The point made in the last two sentences of paragraph 14 is repeated at the end of paragraph 31 of the Introduction.

[28]Given my conclusion on Issue One, it seems to me that there is no point in considering this issue further. Mr Huckle did not suggest that, if the judge was correct to use the Blamire approach, nonetheless the amount of the lump sum awarded for loss of future earnings was unreasonably low because it failed to take account of the appellant’s disability. That submission was not advanced by any of the Grounds of Appeal or in his written or oral arguments.

[29]In any event, I would not have accepted the submission of Mr Huckle that the appellant is to be regarded as “disabled” in order to determine which factors are to apply to the multipliers in Ogden 6 to allow for the “contingency” of disability. Paragraph 35 of the Introduction is under the general heading “The deduction for contingencies other than mortality. The paragraph states, in part: The definition of employed/not employed, disabled/not disabled and educational attainment used in this analysis and which should be used for determining which factors to apply to the multipliers to allow for contingencies other than mortality are as follows: …… Disabled: A person is classified as being disabled if all three of the following conditions in relation to the ill-health or disability are met: has either a progressive illness or an illness which has lasted or is expected to last for over a year; satisfies the Disability Discrimination Act definition that the impact of the disability substantially limits the person’s ability to carry out normal day to day activities; and their condition affects either the kind or the amount of paid work they can do. Not disabled: All others.

and

[30]I emphasise the words “all three of the following conditions…” at the outset of that paragraph. Assuming for the present that the first two of those conditions are satisfied, I am clear that, on the findings of fact of the judge taken overall, the third is not. Therefore, even if the Blamire approach were incorrect in principle, the “disability” factor in Odgen 6 could not be used in this case.

Issue Three: Did the judge err with regard to the award for psychiatric injury?

[31]Mr Huckle challenged the judge’s conclusion that the appellant had only suffered PTSD for a period of four months and that there was no continuing psychiatric injury. He submitted that the judge’s conclusions were contrary to the evidence which demonstrated that the appellant was suffering from a continuing anxiety to go near “cutting machines” and a general anxiety of “flashbacks” of the accident. He submitted that the judge misunderstood the psychiatric experts’ evidence, was unfair to the appellant’s expert, Dr Pradham and that the judge’s conclusions from the expert evidence were unreasonable. He submitted that the judge had failed to take account of the fact that the appellant had undergone 11 sessions of Cognitive Behavoural Therapy in 2009-10, which was only partially successful. He specifically referred us to the joint memorandum of the experts that is dated 11 October 2010, that is some six months before the trial itself. He also submitted that the judge’s characterisation of the appellant as a “poor historian” in relation to the incident concerning her father’s cutting machine in the garden at home was unfair and that he wrongly used this finding as the basis of unjustified conclusions on the extent to which the appellant was suffering from PSTD and a continuing fear of cutting machines. If the judge had properly analysed the evidence he would have concluded that the appellant’s psychiatric injury was continuing and so merited a much higher award, based on the JSB Guidelnes. Mr Huckle did not seek a retrial on this issue, but said that this court could review the evidence and make the necessary adjustment in the figure itself.

[32]Mr Pershad submitted that the judge was fully entitled to find on the evidence that the appellant had suffered from PTSD for a limited period of only four months and, given that finding, the amount of the award (£4000) was reasonable and in line with the JSB Guideline figures. These indicate a range of £2,654.24 to £5,512.65 for “Minor” PTSD where “a virtually full recovery will have been made within one or two years and only minor symptoms will persist over any longer period”. He made the point that it is not the diagnosis which gives rise to an award for pain and suffering, whether it is physical or psychiatric inury, but the level of pain, suffering and loss of amenity actually experienced. Mr Pershad’s written submissions analysed the history of the assessments of the appellant by the psychiatric experts and their resulting reports.

[33]The judge had the experts’ reports, heard their evidence and heard that of the appellant. If his findings on the nature and extent of the appellant’s pain, suffering and loss of amenity as a result of psychiatric injury are to be successfully challenged, the appellant has to demonstrate that the judge’s conclusions were outside the bounds of what he could reasonably find on the evidence before him. I have read and re-read the paragraphs of the judgment dealing with this issue ([20]-[34]) and the evidence to which we were referred in the light of the criticisms that Mr Huckle has made of the judge’s approach and conclusions. I am satisfied that the judge accurately records the evidence of the experts and fairly records that of the appellant. His conclusions are logical and reasonable on the basis of his findings. On the basis of those conclusions the PTSD was within the JSB Guideline category of “Minor”, which takes account of “minor symptoms” persisting over a longer period than two years after the accident. The figure of £4000 is within the JSB Guidelines for “Minor” PSTD. I would reject this ground of appeal entirely. Issue Four: Did the judge err with regard to the award for the loss of past earnings?

[34]Mr Huckle attacked both the period for which the judge awarded damages (3 ½ years) and the figure for annual earnings that the judge took (£17,000) to make his award under this heading. He submitted that there was no rational basis for deducting one year from the earning period and he emphasised that the court had to compensate for loss of earnings “capacity”. Mr Huckle also submitted that the figure of £17,000 per year was too low on the evidence of earnings of contemporaries of the appellant.

[35]The judge’s conclusions are at [45]. On the first point, the judge deducted one year from the period of earning because the appellant had had no training beyond her (excellent) degree result and had not secured any employment in her chosen field of theatrical model making at the time the accident occurred. In my view the judge was entitled to find that there would have been “a period of looking for employment”. I accept that there was evidence from the appellant that she would have accepted temporary work even if she had not been able to find full time employment in theatrical model making. But the judge chose to lump the period of “unemployment” into one and I think that was reasonable. The evidence was that theatrical model making was usually freelance, which implies periods when no money will be earned. The fact that the court is awarding compensation for loss of earning capacity does not, in my judgment, mean that the court must award a sum for periods when, as the court finds, the claimant would not have had any employment at all. The judge assumed full time employment for the last 3 ½ years. Overall that is, in my judgment, a reasonable approach and one that was available on the evidence.

[36]As to the second point, the level of remuneration, there was evidence from Mr Tindall that an hourly rate of £8.50 was the “baseline” and evidence from Mr Yates that the comparator figures from contemporaries of the appellant were “in the right ball park”. There was some dispute as to whether the appellant was earning £8 or £10 an hour on her placement with the respondents. The emails from contemporaries of the appellant showed that there was a range of net income from £13,310 in the first year to £20,554 in the most recent year. Overall, in my judgment, the figure of £17,000 per year cannot be regarded as outside the reasonable range of figures that were produced on the evidence.

[37]I would therefore reject this ground of appeal also.

Conclusions and Disposal

[38]I would reject each of the Grounds of appeal argued by Mr Huckle and would dismiss the appeal.

Lord Justice Kitchin:

[39]I agree.

Sir Richard Buxton:

[40]I also agree.

order

(1) did the judge err in adopting the Blamire approach to the award of future loss of earnings?

(2) If he was wrong to do so, then, for the purposes of applying the conventional multiplicand/multiplier approach and Ogden 6, is the appellant to be regarded as “disabled”?

(3) Did the judge err with regard to the award for psychiatric injury?

(4) Did the judge err with regard to the award for the loss of past earnings? Issue One: did the judge err in adopting the Blamire approach when awarding damages for loss of future earnings?